OBSEIIVA.TIONS 

7 



SENATOR DOUGLAS'S 



POPULAR SOYEREIGNTY, 



AS EXPRESSBP 1!C 



HARPERS' MAGAZINE, FOR SEPTEMBER, 1859, 



SECOND .EDITION. 






WASHINGTON : 

THOMAS M c G I L L , P K I N T K 11 . 
1859. 



^ 






OBSERVATIOIS. 



Every one knows that Mr. Douglas, the Senator from Illinois, 
• has written and printed an elaborate essay, comprising thirty-eight 
columns of Harpers' Magazine, in which he has undertaken to point 
out the " dividing line between federal and local authority." Very 
many persons have glanced over its paragraphs to catch the leading 
ideas without loss of time, and some few have probably read it with care. 

Those who dissent from the doctrines of this paper owe to its 
author, if not to his arguments, a most respectful answer. Mr. 
Douglas is not the man to be treated with a disdainful silence. His 
ability is a fact unquestioned ; his public career, in the face of many 
disadvantages, has been uncommonly successful; and he has been 
for many years a working, struggling candidate for the Presidency. 
He is, moreover, the Corypheus of his political sect — the founder 
of a new school — and his disciples naturally believe in the infallible 
verity of his words as a part of their faith. 

The style of the article is, in some respects, highly commendable. 
It is entirely free from the vulgar clap-trap of the stump, and has no 
vain adornment of classical scholarship. But it shows no sign of the 
eloquent Senator ; it is even without the logic of the great debater. 
Many portions of it are very obscure. It seems to be an unsuccess- 
ful effort at legal precision; like the writing of a judge, who is trying 
in vain to give good reasons for a wrong decision on a question of 
law which he has not quite mastered. 

With the help of Messrs. Seward and Lincoln, he has defined 
accurately enough the platform of the so-called Republican party ; 
and he does not attempt to conceal his conviction that their doc- 
trines are, in the last degree, dangerous. They are, most assuredly, 
full of evil and saturated with mischief. The "irrepressible con- 
flict" which they speak of with so much pleasure between the " op- 
posing and enduring forces" of the Northern and Southern States, 
will be fatal, not merely to the peace of the country, but to the ex- 
istence of the Government itself. Mr. Douglas knows this, and he 
knows, also, that the Democratic party is the only power which is, or 
can be, organized to resist the Republican forces or oppose their 
hostile march upon the capital. He who divides and weakens the 
friends of the country at such a crisis in her fortunes, assumes a 
very grave responsibility. 

Mr. Douglas separates the Democratic party into three classes, 
and describes them as follows : 

^' First. Those who believe that the Constitution of the United States neither 
establishes nor prohibits slavery in the States or Territories beyond the power of 
the people legally to control it, but 'leaves the people thereof perfectly free to form 
and regulate their domestic institutions in their own way, subject only to the Con- 
stitution of the United States.' 



" Second. Those who believe that the Constitution establishes slavery in the Ter- 
ritories, and withholds from Congress and the Territorial Legislature the power to 
control it, and who insist that, in the event the Territorial Legislature fails to enact 
the requisite laws for its protectjon, it becomes the imperative duty of Congress to 
interpose its authority and fui'nish such protection. 

Third. Those who, while professing to believe that the Constitution establishes 
slavery in the Territories beyond the power of Congress or the. Territorial Legisla- 
ture to control it, at the same time protest against the duty of Congress to inter- 
fere for its protection ; but insist that it is the duty of the judiciary to protect and 
maintain slavery in the Territories without any law upon the subject." 

We give Mr. Douglas the full benefit of his own statement. This 
is his mode of expressing those differences, which, he says, disturb 
the harmony, and threaten the integrity, of the American Democracy. 
These passages should, therefore, be most carefully considered. 

The first class is the one to which he himself belongs, and to both 
the others he is equally opposed. He has no right to come between 
the second and third class. If the difference which he speaks of 
does exist among his opponents, it is their business, not his, to settle 
it or fight it out. We shall therefore confine ourselves to the dis- 
pute between Mr, Douglas and his followers on the one hand, and 
the rest of the Democratic party on the other, presuming that he 
will be willing to observe the principle of non-intervention in all 
matters with which he has no concern. 

We will invert the order in v/hich he has discussed the subject, 
and endeavor to show — 

1. That he has not correctly stated the doctrine held by his op- 
ponents ; and, 

2.' That his own opinions, as given by himself, are altogether 
unsound. 

I. lie says that a certain portion of the Democratic party believe, 
or profess to believe, that the Constitution establishes slavery in the 
Territories, and insist that it is the duty of the judiciary to main- 
tain it there ivithout any laiv on the subject. We do not charge him 
with any intention to be unfair : but we assert, that he has in fact done 
wrong to, probably, nineteen-twcntieths of the party, by attempting 
to put them on grounds which they never chose for themselves. 

The Constitution certainly does not establish slavery in the Ter- 
ritories, nor anywhere else. Nobody in this country ever thought 
or said so. But the Constitution regards as sacred and inviolable 
all the rights which a citizen may legally acquire in a State. If a 
man acquires property of any kind in a State, and goes with it 
into a Territory, he is not for that reason to be stripped of it. Our 
simple and plain proposition is, that the legal owner of a slave or 
other chattel may go with it into a Federal Territory without for- 
feiting his title. 

Who denies the truth of this, and upon what ground can it be 
controverted ? The reasons which support it are very obvious and 
very conclusive. As a jurist and a statesman, Mr. Douglas ought to 
be familiar with them, and there was a time when he was supposed 
to understand them very well. We will briefly give him a few of them. 

1. It is an axiomatic principle of public law, that a right of 



property, a private relation, condition or status, lawfully existing 
in one State or country, is not changed by the mere removal of the 
parties to another country, unless the law of that other country 
be in direct conflict with it. For instance : A marriage legally 
solemnized in France is binding in America; children born in Ger- 
many are legitimate here if they are legitimate there ; and a mer- 
chant who buys goods in New York according to the laws of that 
State may carry them to Illinois and hold them there under his 
contract. It is precisely so with the status of a negro carried from 
one part of the United States to another ; — the question of his 
freedom or servitude depends on the law of the place where he 
came from, and depends on that alone, if there be no conflicting 
law at the place to which he goes or is taken. The Federal Con- 
stitution therefore recognizes slavery as a legal condition wherever 
the local governments have chosen to let it stand unabolished, and 
regards it as illegal wherever the laws of the place have forbidden 
it. A slave being property in Virginia, remains property ; and his 
master has all the rights of a Virginia master wherever be may go, 
so that he go not to any place where the local law comes in conflict 
with his right. It will not be pretended that the Constitution itself 
furnishes to the Territories a conflicting law. It contains no pro- 
vision that can be tortured into any semblance of a prohibition. 

2. The dispute on the question whether slavery or freedom is 
local or general, is a mere war of words. The black race in this 
country is neither bond nor free by virtue of any general law. That 
portion of it which is free is free by virtue of some local regula- 
tion, and the slave owes service for a similar reason. The Consti- 
tution and laws of the United States simply declare that everything 
done in the premises by the State governments is right, and they 
shall be protected in carrying it out. But free negroes and slaves 
may both find themselves outside of any State jurisdiction, and in 
a Territory where no regulation has yet been made on the subject. 
There the Constitution is equally impartial. It neither frees the 
slave nor enslaves the freeman. It requires both to remain in statu 
q%io until the status already impressed upon them by the law of their 
previous domicil shall be changed by some competent local author- 
ity. What is competent local authority in a Territory will be else- 
where considered. 

3. The Federal Constitution carefully guards the rights of pri- 
vate property against the Federal Government itself, by declaring 
that it shall not be taken for public use without compensation, nor 
without due process of law. Slaves are private property, and every 
man who has taken an oath of fidelity to the Constitution is reli- 
giously, morally, and politically bound to regard them as such. 
Does anybody suppose that a Constitution which acknowledges the 
sacredness of private property so fully would wantonly destroy 
that right, not by any words that are found in it, but by mere im- 
plication from its general principles ? It might as well be asserted 
that the general principles of the Constitution gave Lane and Mont- 
gomery a license to steal horses in the valley of the Osage. 



6 

4. The Supreme Court of the United States has decided the 
question. After solemn argument and careful consideration, that 
august tribunal has announced its opinion to be that a slaveholder, 
by going into a Federal Territory, does not lose the title he had to 
his negro in the State from which he came. In former times, a 
question of constitutional law once decided by the Supreme Court 
was regarded as settled by all, except that little band of ribald infi- 
dels, who meet periodically at Boston to blaspheme the religion, and 
plot rebellion against the laws, of the country. The leaders of the 
so-called Hepublican party have lately been treading close on the 
heels of their abolition brethren ; but it is devoutly to be hoped 
that Mr. Douglas has no intention to follow their example. In case 
he is elected President, he must see the laws faithfully executed. 
Does he think he can keep that oath by fighting the judiciary ? 

5. The legislative history of the country shows that all the great 
statesmen of former times entertained the same opinion, and held it 
so firmly that they did not even think of any other. It was uni- 
versally taken for granted that a slave remained a slave, and a free- 
man a freeman, in the new Territories, until a change was made in 
their condition by some positive enactment. Nobody believed that 
a slave might not have been taken to and kept in the Northwest 
Territory if the ordinance of 1787 or some other regulation had 
not been made to prohibit it. The Missouri restriction of 1820 
was imposed solely because it was understood (probably by every 
member of that Congress) that, in the absence of a restriction, slave 
property would be as lawful in the eye of the Constitution above 
36° 30', as below ; and all agreed, that the mere absence of a re- 
striction did, in fact, make it lawful below the compromise line. 

6. It is right to learn wisdom from our enemies. The Republi- 
cans do not point to any express provision of the Constitution, nor 
to any general principle embraced in it, nor to any established rule 
of law, which sustains their views. The ablest men among them 
are driven by stress of necessity to hunt for arguments in a code 
unrevealed, unwritten, and undefined, which they put above the 
Constitution or the Bible, and call it "higher law." The ultra 
abolitionists of New England do not deny that the Constitution is 
rightly interpreted by the Democrats, as not interfering against 
slavery in the Territories ; but they disdain to obey what they pro ] 
nounce to be "an agreement with death and a covenant with hell." 

7. What did Mr. Douglas mean when he proposed and voted for 
the Kansas-Nebraska bill repealing the Missouri restriction ? Did 
he intend to tell southern men that notwithstanding the repeal of 
the prohibition, they were excluded from those Territories as much 
as ever ? Or did he not regard the right of a master to his slave 
perfectly good whenever he got rid of the prohibition ? Did he, 
or anybody else at that time, dream that it was necessary to make 
a positive law in favor of the slaveholder before he could go there 
with safety ? To ask these questions is to answer them ? The 
Kansas-Nebraska bill was not meant as a delusion or a snare. It 



^ 



was well understood that the repeal alone of the restriction against 
slavery would throw the country open to everything which the Con- 
stitution recognized as property. 

We have thus given what we believe to be the opinions held by 
the great body of the Democratic party : namely, that the Federal 
Constitution does not establish slavery anywhere in the Union ; that 
it permits a black man to be either held in servitude or made free as 
the local law shall decide ; and that in a Territory where no local 
law on the subject has been enacted, it keeps both the slave and 
the free negro in the status already impressed upon them, until it 
shall be changed by competent local authority. We have seen, that 
this is sustained by the reason of the thing, by a great principle of 
public law, by the words of the Constitution, by a solemn deci- 
sion of the Supreme Court, by the whole course of our legislation, 
by the concession of our political opponents, and, finally, by the 
most important act in the public life of Mr. Douglas himself. 

Mr. Douglas imputes another absurdity to his opponents when he 
charges them with insisting " that it is the duty of the judiciary to 
protect and maintain slavery in the Territories without any law 
upon the subject.'' The judge who acts without law acts against 
law ; and surely no sentiment so atrocious as this was ever enter- 
tained by any portion of the Democratic party. The right of a 
master to the services of his slave in a Territory is not against law 
nor without law, but in full accordance with law. If the law be 
against it we are all against it. Has not the emigrant to Nebraska 
a legal right to the ox team, which he bought in Ohio, to haul him 
over the plains ? Is not his title as good to it in the Territory, 
as it was in the State where he got it ? And what should be said 
of a judge who tells him that he is not protected, or that he is main- 
tained, in the possession of his property " without any law upon the 
subject?" 

II. We had a right to expect from Mr. Douglas at least a clear 
and intelligible definition of his own doctrine. We are disappointed. 
It is hardly possible to conceive anything more difficult to compre- 
hend. We will transcribe it again, and do what can be done tff 
analyze it. 

"Those who believe that the Constitution of the United States neither establishes 
nor prohibits slavery in the States or Territories beyond the power of the people 
legally to control it, but ' leaves the people thereof perfectly free to form and reg- 
ulate their domestic institutions in their own way, subject only to the Constitution 
of the United States.' " 

The Constitution neithe7' establishes nor prohibits slavery in the 
States or Territories. If it be meant by this that the Constitution 
does not, proprio vigore, either emancipate any man's slave, or create 
the condition of slavery, and impose it on free negroes, but leaves 
the question of every black man's status, in the Territories as well as 
in the States, to be determined by the local law, then we admit it, for 
it is the very same proposition which we have been trying to prove. 
But if, on the contrary, it is to be understood as an assertion that 



the Constitution does not permit a master to keep his slave, or 
a free negro to have his liberty, in all parts of the Union where the 
local law does not interfere to prevent it, then the error is not only 
a very grave one, but it is also absurd nu^ self-contradictory. 

The Constitution neither establishes nor frohihits slavery in the 
States or Territories beyond the poiver of the people legally to con- 
trol it. This is sailing to Point-No-Point again. Of course a sub- 
ject, which is legally controlled, cannot be beyond the power that 
controls it. But the question is, Avhat constitutes legal control, and 
when the people of a State or Territory are in a condition to ex- 
ercise it. 

The Constitution of the United States * * * * leaves the 
people perfectly free, * * * and subject only to the Constitu- 
tion of the United States. This carries us round a full circle, and 
drops us precisely at the place of beginning. That the Constitu- 
tion leaves everybody subject to the Constitution, is most true. We 
are far from denying it. We never heard it doubted, and expect 
we never will. But the statement of it proves nothing, defines 
nothing, and explains nothing. It merely darkens the subject; as 
words without meaning always do. 

But notwithstanding all this circuity of expression and conse- 
quent opaqueness of meaning in the magazine article of Mr. Douglas, 
we think we can guess what his opinions are or will be when he 
comes to reconsider the subject. He will admit (at least he will 
not undertake to deny) that the status of a negro, whether of ser- 
vitude or freedom, accompanies him wherever he goes, and adheres 
to him in every part of the Union until he meets some local law 
which changes it. 

It will also be agreed that the people of a State, through their 
Legislature, and the people of a Territory, in the constitution which 
they may frame preparatory to their admission as a State, can reg- 
ulate and control the condition of the subject black race within 
their respective jurisdictions, so as to make them bond or free. 

But here we come to the point at which opinions diverge. Some 
1 insist that no citizen can be deprived of his property in slaves, or 

■ in anything else, except by the provision of a State constitution or 
by the act of a State Legislature ; while others contend that an 

( unlimited control over private rights may be exercised by a Terri- 

■ torial Legislature as soon as the earliest settlements are made. 

So strong are the sentiments of Mr. Douglas in favor of the 
latter doctrine, that if it be not established he threatens us Avith 
Mr. Seward's "irrepressible conflict," which shall end only with 
the universal abolition or the universal dominion of slavery. On 
the other hand, the President, the Judges of the Supreme Court, 
laearly all the Democratic members of Congress, the whole of the 
party South, and a very large majority North, are penetrated with 
a conviction, that no such power is vested in a Territorial Legis- 
lature, and that those who desire to confiscate private property 
of any kind must wait until they get a constitutional convention 



9 

or the machinery of a State government into their hands. We 
venture to give the following reasons for believing that Mr. Douglas 
is in error : 

The Supreme Court haS decided that a Territorial Legislature 
has not the power which he claims for it. That alone ought to 
be sufficient. There can be no law, order, or security for any 
man's rights, unless the judicial authority of the country be up- 
held. Mr. Douglas may do what he pleases with political con- 
ventions and party platforms, but we trust he will give to the Su- 
preme Court at least that decent respect, Avhich none but the most 
ultra llepublicans have yet withheld. 

The right, of property is sacred, and the first object of all buman 
government is to make it secure. Life is always unsafe where prop- 
erty is not fully protected. This is the experience of every people 
on earth, ancient and modern. To secure private property was a 
principal object of Magna Gliarta. Charles I. afterwards attempted 
to violate it, but the people rose upon him, dragged him to the 
block, and severed his head from his body. At a still later period 
another monarch for a kindred offence was driven out of the coun- 
try, and died a fugitive and an outcast. Our own Revolution was 
prpvoked by that slight invasion upon the right of property which 
consisted in the exaction of a ti'ifling tax. There is no government 
in the world, however absolute, which would not be disgraced and 
endangered by wantonly sacrificing private property even to a small 
extent. For centuries past such outrages have ceased to be com- 
mitted in times of peace among civilized nations. 
. Slaves are regarded as property in the Southern States. The 
people of that section bny and sell, and carry on all their business, 
provide for their fanulies, ;;nd make their wills and divide their in- 
heritances on that assumption. It is manifest to all who know them, 
that no doubts ever cross their minds about the rightfulness of hold- 
ing such property. They believe they have a direct warrant for it, 
not only in the examples of the best men that ever lived, but in the 
precepts of Diviiie Revelation itself; and they are thoroughly satis- 
fied that the relation of master and slave is the only one which can 
possibly exist there between the white and the black race Avithout 
ruining both. The people of the North may differ from their fellow- 
citizens of the South on the whole subiect, but knowinir, as we all 
o, that these sentiments are sincerely and honestl}'^ entertained, we 
cannot wonder that they feel the most unspeakable indignation when 
any attempt is made to interfere with their rights. This sentiment 
results naturally and necessarily from their education and habits of 
thinking. They cannot help it, any more than an honest man in 
the North can avoid abhorring a thief or housebreaker. 

The jurists, legislators, and people of the Northern States, have 
always sacredly respected the right of property in slaves held by 
their own citizens within their own jurisdiction. It is a remark 
able fact, very well worth noticing, that no Northern State ever 
passed any law to take a negro from his master. All laws for the 



10 

abolition of slavery have operated only on the unborn descendants 
of the negro race, and the vested rights of masters have not been 
disturbed in the North more than in the South. 

In every nation under heaven, civilized, semi-barbarous, or savage, 
where slavery has existed in any form at all analogous to ours, the 
rights of the masters to the control of their slaves as property have 
been respected ; and on no occasion has any government struck at 
those rights, except as it would strike at other property. Even the 
British Parliament, when it emancipated the West India slaves, 
though it was legislating for a people three thousand miles away, 
and not represented, never denied either the legal or the natural 
right of the slave owner. Slaves were admitted to be property, 
and the Grovernment acknowledged it by paying their masters one 
hundred millions of dollars for the privilege of setting them free. 

Here, then, is a species of property which is of transcendent im- 
portance to the material interests of the South — which the people 
of that region think it right and meritorious in the eyes of God 
and good men to hold — which is sanctioned by the general sense of 
all mankind among whom it has existed — which was legal only a 
short time ago in all the States of the Union, and was then treated 
as sacred by every one of them — which is guaranteed to the owner 
as much as any other property is guaranteed by the Constitution ; — 
and Mr. Douglas thinks that a Territorial Legislature is competent 
to take it away. We say. No; the supreme legislative power of a 
sovereign State alone can deprive a man of his property. 

This proposition is so plain, so well established, and so univer- 
sally acknowledged, that any argument in its favor would be a mere 
waste of words. Mr. Douglas does not deny it, and it did not re- 
quire the thousandth part of his sagacity to see that it was undeni- 
able. He claims for the Territorial governments the right of con- 
fiscating private property on the ground that those governments are 
sovereign — have an uncontrollable and independent power over all 
their internal affairs. That is the point which he thinks is to split 
the Democracy and impale the nation. But it is so entirely erro- 
neous, that it must vanish into thin air as soon as it cocaes to be 
examined. 

A Territorial government is merely provisional and temporary. 
It is created by Congress for the necessary perservation of order and 
the purposes of police. The powers conferred upon it are ex- 
pressed in the organic act, which is the charter of its existence, 
and which may be changed or repealed at the pleasure of Con- 
gress. In most of those acts the power has been expressly re- 
served to Congress of revising the Territorial laws, and the power 
to repeal them exists without such reservation. This was asserted in 
the case of Kansas by the most distinguished Senators in the Con- 
gress of 1856. The President appoints the Governor, judges, and 
all other officers whose appointment is not otherwise provided for, 
directly or indirectly, by Congress. Even the expenses of the Ter- 
ritorial government are paid out of the Federal treasury. The truth 



11 

is, they have no attribute of sovereignty about them. The essence 
of sovereignty consists in having no superior. But a Territorial 
government has a superior in the United States Government, upon 
whose pleasure it is dependent for its very existence — in whom it lives, 
and moves, and has its being — who has made, and «an unmake it with 
a breath. 

Where does this sovereign authority to deprive men of their prop- 
erty come from ? This transcendent power, which even despots are 
cautious about using, and which a constitutional monarch never ex- 
ercises — how does it get into a Territorial Legislature ? Surely it 
does not drop from the^ clouds: it will not be contended, that it 
accompanies the settlers, or exists in the Territory before its organ- 
ization. Indeed it is not to the people, but to the government of a 
Territory, that Mr. Douglas says it belongs. Then Congress must 
give the power at the same time that it gives the Territorial gov- 
ernment. But not a word of the kind is to be found in any ovganic 
act that ever was framed. It is thus that Mr. Douglas's argument 
runs itself out into nothing. 

But if Congress ivould pass a statute expressly to give this sort 
of power to the Territorial governments, they still would not have 
it ; for the Federal Government itself does not possess any control 
over men's property in the Territories. That such power does not 
exist in the Federal Government needs no proof: Mr. Douglas 
admits it fully and freely. It is, besides, established by the solemn 
decision of Congress, by the assent of the Executive, and by the 
direct ratification of the people acting in their primary capacity at 
the polls. In addition to all this, the Supreme Court have delib- 
erately adjudged it to be an unalterable and undeniable rule of con- 
stitutional law. 

This acknowledgment that Congress has no power, authority, or 
jurisdiction over the subject, literally obliges Mr. Douglas to give up 
his doctrine, or else to maintain it by asserting that a power which 
the Federal Government does not possess may be given by Congress 
to the Territorial government. The right to abolish African slavery 
in a Territory is not granted by the Constitution to Congress ; it 
is withheld, and therefore the same as if expressly prohibited. Yet 
Mr. Douglas declares that Congress may give it to the Territories. 
Nay ; he goes further, and says that the ivant of the power in Con- 
gress is the very reasonvfhy it can delegate it — the general rule, in his 
opinion, being that Congress cannot delegate the powers it possesses, 
but may delegate such, " and only such, as Congress cannot exercise 
under the Constitution!" By turning to pages 520 and 521, the 
reader will see that this astounding proposition is actually made, not 
in jest or irony, but solemnly, seriously, and, no doubt, in perfect good 
faith. On this principle, as Congress cannot exercise the power to 
make an ex post facto law, or a law impairing the obligation of con- 
tracts, therefore it may authorize such laws to be made by the town 
councils of Washington city, or the levy court of the District. 
If Congress passes an act to hang a man without trial, it is void, 



12 

and the judges will not allow it to be executed; but the power to do 
this prohibited thing can be constitutionally given by Cono-ress to a 
Territorial Legislature ! 

We admit that there are certain powers bestowed upon the Gen- 
eral Government Which are in their nature judicial or executive. 
With them Congress can do nothing, except to see that they are 
executed by the proper kind of officers. It is also true that Con- 
gress has certain legislative powers which cannot be delegated. 
But Mr. Douglas should have know^ that he was not talking about 
powers which belonged to either of these classes, but about a legis- 
lative jurisdiction totally forbidden to the Federal Government, 
and incapable of being delegated, for the simple reason that it does 
not constitutionally exist. 

Will anybody say that such a power ought, as a matter of policy, 
or for reason^' of public safety, to be held by the provisional gov- 
ernments of the Territories ? Undoubtedly no true patriot, nor lio 
friend of justice and order, can deliberately reflect on the probable 
consequences without deprecating them. 

This power over property is the one which in all governments has 
been most carefully guarded, because the temptation to abuse it is 
always greater than any other. It is there that the subjects of a 
limited monarchy watch their king with the greatest jealousy. No 
republic has ever failed to impose strict limitations upon it. All free 
people know, that if they would remain free, they must compel the gov- 
ernment to keep its hands off their private property; and this can be 
done only by tying them up with careful restrictions. Accordingly 
our Federal Constitution declares that " no person shall be deprived 
of his property except by due process of law," and that " private 
property shall not be taken for public use without just compensa- 
tion." It is universally agreed that this applies only to the exer- 
cise of the power by the Government of the United States. We'are 
also protected against the State governments by a similar provision 
in the State constitutions. Legislative robbery is therefore a crime 
which cannot be committed either by Congress or by any State 
Legislature, unless it be done in flat rebellion to the fundamental 
law of the land. But if the Territorial governments have' this 
power, then they have it without any limitation whatsoever, and 
in all the fulness of absolute despotism. They are omnipotent 
in regard to all their internal affairs, for they are sovereigns, 
ivitliout a constitution to liold tJtem in check. And this omnipo- 
tent sovereignty is to be wielded by a 'few men suddenly drawn 
together from all parts of America and Europe, unacquainted 
with one another, and ignorant of their relative rights. But 
if Mr. Douglas is right, those governments have all the abso- 
lute power of the Russian Autocrat. They may take every kind of 
property in mere caprice, or for any purpose of lucre or malice, 
without process of law, and without providing for compensation. 
The Legislature of Kansas, sitting at Le(?ompton or Lawrence, may 
order the miners to give up every ounce of gold that has been dug 



13 

at Pike's Peak. If the authorities of Utah should license a band 
of marauders to despoil the emigrants crossing the Territory, their 
sovereign right to do so cannot be questioned. A new Territory 
may be organized, which Southern men think should be devoted to 
the culture of cotton,' while the people of the North are equally 
certain that grazing alone is the proper business* to be carried on 
there. If one party, by accident, by force, or by fraud, has a ma- 
jority in the Legislature, the negroes are taken from the planters; 
and if the other set gains a political victory, it is followed by a 
statute to plunder the graziers of their cattle. Such things cannot 
be done by the Federal Government, nor by the governments of 
the States ; but, if Mr. Douglas is not mistaken, they can be done 
by the Territorial governments. Is it not every way better to 
wait until the new inhabitants know themselves and one another ; 
until the policy of the Territory is settled by some experience ; and,, 
above all, until the great powers of a sovereign State are regularly 
conferred upon them and properly lijoited, so as to prevent the gross 
abuses which always accompany unrestricted power in human hands ? 

There is another consideration, which Mr. Douglas should have 
been the last man to overlook. The present Administration of the 
Federal Government, and the whole Democratic party throughout 
the country, including Mr. Douglas, thought that, in the case of 
Kansas, the question of retaining or abolishing slavery should not 
be determined by any representative body without giving to the 
whole mass of the people an opportunity of voting on it. Mr. 
Douglas carried it further, and warmly opposed the constitution, 
denying even its validity, because other and undisputed parts of it 
had not also been submitted to a popular vote. Now he is willing 
that the whole slavery dispute in any Territory, and all questions 
that can arise concerning the rights of the people to tli^it or other 
property, shall be decided at once by a Territorial Legislature, 
without any submission at all. Popular sovereignty in the last 
Congress meant the freedom of the people from all the restraints 
of law and order : now it means a government which shall rule 
them with a rod of iron. It swings like a pendulum from one side 
clear over to the other. 

Mr. Douglas's opinions on this subject of sovereign Territorial 
governments are very singular ; but the reasons he has produced 
to support them are infinitely more curious still. For instance, he 
shows that Jefferson once introduced into the old Congress of the 
Confederation a pla7i for the government of the Territories, calling 
them by the name of " New States," but not making them anything 
like sovereign or independent. States ; and though this was not em- 
bodied in the Constitution, nor adopted by any subsequent Congress, 
nor ever afterwards referred to by Jefferson himself, yet Mr. Douglas 
argues upon it as if it had somehow become a part of our funda- 
mental law. 

Again: He says that the States gave to the Federal Government 
the same powers which as colonies they had been willing to concede 
to the British Government, and kept those which as colonies they 



14 

had claimed for themselves. If he will read a common-school his- 
tory of the Revolution, and then look at Art. I, sec. 8, of the Con- 
stitution, he will find the two following facts fully established: 
1. That the Federal Government has " power to lay and collect 
taxes, duties, imposts, and excises;" and, 2. That the colonies, be- 
fore the Revoluti(ia, utterly refused to be taxed by Great Britain ; 
and so far from conceding the power, fought against it for seven 
long years. 

There is another thing in the article which, if it had not come 
from a distinguished Senator, and a very upright gentleman, would 
have been open to some imputation of unfairness. He quotes the 
President's message, and begins in the middle of a sentence. He 
professes to give the very words, add makes Mr. Buchanan say : 
"That slavery exists in Kansas by virtue of the Constitution of the 
United States. ' ' What Mr. Buchanan did say was a very different thing. 
It wasihis : "It has been solemnly adjudged by the highest judicial 
tribunal known to our laws, that slavery exists in Kansas by virtue of 
the Constitution of the United States." Everybody knows that by 
treating the Bible in that way, you can prove the non-existence of 
God. 

The argumentum ad hominem is not fair, and we do not mean to 
use it. Mr. Douglas has a right to change his opinions whenever 
he pleases. But we quote him as we would any other authority 
equally high in favor of truth. We can prove by himself that 
every proposition he lays down in Harpers' Magazine is founded 
in error. Never before has any public man in America so com- 
pletely revolutionized his political opinions in the course of eighteen 
months. We do not deny that the change is heartfelt and con- 
scientious. We only insist that he formerly stated his propositions 
much mor^ clearly, and sustained them with far greater ability and 
better reasons, than he does now. 

When he took a tour to the South, at the beginning of last win- 
ter, he made a speech at New Orleans, in which he announced to 
the people tbere that he and his friends in Illinois accepted the 
Dred Scott decision, regarded slaves as property, and fully admitted 
the right of a Southern man to go into any Federal territory with his 
slave, and to hold him there as other property is held. 

In 1849 he voted in the Senate for what was called Walker's 
amendment, by which it was proposed to put all the internal 
affairs of California and New Mexico under the domination of the 
Fresident, giving him almost unlimited power, legislative, judicial, 
and executive, over the internal affairs of those Territories. (See 
20th Cong., p. .) Undoubtedly this was a strange way of treat- 
ing sovereignties. If Mr. Douglas is right now, he was guilty then 
of most atrocious usurpation. 

Utah is as much a sovereign State as any other Territory, and 
as perfectly entitled to enjoy the right of self-government. On the 
12th of June, 1857, Mr. Douglas made a speech about Utah, at 
Springfield, Illinois, in which he expressed his opinion strongly in 



15 

favor of the absolute and unconditional repeal of tiie organic act, 
blotting the Territorial government out of existence, and putting the 
people under the sole and exclusive jurisdiction of the United States, 
like a fort, arsenal, doclc-yard, or magazine. He does not seem to 
have had the least idea then that he was proposing to extinguish a 
sovereignty, or to trample upon the sacred rights of an independent 
people. 

The report -which he made to the Senate, in 1856, on the Topeka 
constitution, enunciates a very different doctrine from that of the 
magazine article. It is true that the language is a little cloudy, 
but no one can understand the following sentences to signify that 
the Territorial governments have sovereign power to take away the 
property of the inhabitants : 

" The sovereignty of a Territory remains in abeyance, suspended in the United 
States, intrust for the people until they shall be admitted into the Union as a "State. In 
the mean time they are admitted to enjoy and exercise all the rights and privileges 
of self-government, in subordination to the Constittition of the United States, and in 
OBEDIENCE TO THE ORGANIC LAW passed by Congrcss in pursuance of that instru- 
ment. These rights and privileges are all derived from the Constitution, through 
the act of Congress, and must be exercised and enjoyed in subjection to all the limit- 
ations and restrictions which that Constitntion imposes." 

The letter he addressed to a Philadelphia meeting, in February, 
1858, is more explicit, and, barring some anomalous ideas concerning 
the abeyance of the power and the suspension of it in trust, it is 
clear enough : 

"Under our Territorial system, it requires sovereign power to ordain and estab- 
lish constitutions and governments. "While a Territory may and should enjoy all 
the rights of self-government, in obedience to its organic law, it is not a sovereign 
POWER. The sovereignty of a Territory remains in abeyance, suspefiided in the United 
States, in trust for the people when they become a State, and cannot be withdratvn from 
the hands of the trustee and vested in the people of a Territory without the consent of 
Congress.^' 

The report which he made in the same month, from the Senate 
Committee on Territories, is equally distinct, and rather more em- 
phatic against his new doctrine : 

" This committee in their reports have always held that a Territory is not a sove- 
reign power ; that the sovereignty of a Territory is in abeyance, suspended in the 
United States, in trust for the people when they become a State ; that the United 
States, as trustees, cannot be divested of the sovereignty, nor the Territory be in- 
vested with the right to assume and exercise it, without the consent of Congress. 
If the proposition be true that sovereign power alone can institute governments, and 
that the sovereignty of a Territory is in abeyance, suspended in the United States, 
in trust for the people when they become a State, and that the sovereignty cannot 
be divested from the hands of the trustee without the assent of Congress, it follows, 
as an inevitable consequence, that the Kansas Legislature did not and could not 
confer upon the Lecompton convention the sovereign power of ordaining a consti- 
tution for the people of Kansas, in place of the organic act passed by Congress." 

The days are past and gone when Mr. Douglas led the fiery assaults of 
the opposition in the Lecompton controversy. Then it was his object to 
prove that a Territorial Legislature, so far from being omnipotent, was 
powerless even to authorize an election of delegates to consider about their 
own affairs. It was asserted that a convention chosen under a Territorial 
law could make and ordain no constitution which would be legally binding. 



v*' 



16 

Then a Territorial government was to be despised and spit upon, even 
when it invited the people to come forward and vote on a question of the 
most vital importance to their own interests. But now all things have 
become new. The Le^^ompton dispute has '■'■ gone glimmering down the 
dream of things that were," and Mr. Douglas produces another issue, 
brand new from the mint. The old opinions are not worth a rush to his 
present position : it must be sustained by opposite principles and reasoning 
totally different. The Legislature of Kansas was not sovereign when it 
authorized a convention of the people to assemble and decide what sort of 
a constitution they wouldhave, but when it strikes at their rights of prop- 
erty, it becomes not only a sovereign, but a sovereign without limitation 
of power. We have no idea that Mr. Bouglas is not perfectly sincere, as 
he was also when he took the other side. The impulses engendered by 
the heat of controversy have driven him at different times in opposite di- 
rections. VV'e do not charge it against him as a crime, but it is true that these 
views of 'his, inconsistent as they are with one another, always happen to accord 
with the interests of the opposition, alvfays give to the enemies of the Con- 
stitution a certain amount of " aid and comfort." and always add a little 
to the rancorous and malignant hatred with which the Abolitionists re- 
gard the Government of their own country. 

Yes 5 the Lecompton issue which Mr. Douglas made upon the Adminis- 
tration two years ago is done, and the principles on which we were then 
opposed are abandoned. We are no longer required to fight' for the lawful- 
ness of a Territorial election held under Territorial authority. But another 
issue is thrust upon us, to " disturb the harmony and threaten the integ- 
rity" of the party. A few words more,' (perhaps of tedious repetition,) by 
wajr of showing what that new issue is, or probably will be, and we are done. 

We insist that an emigrant going into a Federal Territory, retains his 
title to the property which he took with him, until there is some prohibi- 
tion enacted by lawful authority. Mr. Douglas cannot deny this in the 
face of his New Orleans speech, and the- overwhelming reasons which sup- 
port it. 

It is an agreed point among all Democrats that Congress cannot inter- 
fere with the rights of property in the Territories. 

It is also acknowledged that the people of a new State, either in their 
constitution or in an act of their Legislature, may make the negroes within 
it free, or hold them in a state of servitude. 

But we believe more. We believe in submitting to the law, as decided 
by the- Supreme Court, which declares that a Territorial Legislature can- 
not, any more than Congress, interfere with rights of property in a Terri- 
tory — that the settlers of a Territory are bound to wait until the sovereign 
nower is conferred upon them, with proper limitations, before they attempt 
to esercise the most dangerous of all its functions. Mr. Douglas denies 
this, and there is the new issue. 

Why should such an issue be made at such a time ? What is thfere now 
to ezcuse any friend of peace for attempting to stir up the bitter waters 
of strife? There is no actual difficulty about this subject in any Terri- 
tory. There is no question upon it pending before Congress or the coun- 
try. We are called upon to make a contest, at once unnecessary and 
hopeless, with the judicial authority of the nation. .VV'e object to it. 
We will not obey Mr. Douglas when he commands us to assault the Su- 
preme Court of the United States. We believe the court to be right, and 
Mr. Douglas wrong. 



APPENDIX. 



Another edition of these "Observations" being called for, an 
opportunity is afforded of adding some thoughts suggested by the 
attempted reply of Mr. Douglas, and by some criticisms of a differ- 
ent kind which have appeared in other quarters. 

Mr. Douglas charges us with entertaining the opinion that " all 
the States of the Union" may confiscate private property — a doc- 
trine which he denounces as a most " wicked and dangerous heresy." 
He championizes the inviolability of property, and invokes the fiery 
indignation of the public upon us for ascribing to the States any 
power of taking it away. Now mark how plain a tale will put him 
down. 

There is no such thing and nothing like it on all these pages, 
from the first to the last. Mr. Douglas was merely flourishing his 
lance in the empty air. He had no' ground for his assertion, 
except a most unauthorized inference of his own from our denial 
that the power existed in the Territories. The Territories must 
wait till they become sovereign States before they can confiscate 
property : that was our position. Therefore, says the logic of Mr. 
Douglas, all the States in the Union may do it now. What right 
had he to make imputations of heresy founded upon mere inference, 
Avhen our opinion on the very 'point was directly expressed in words 
so plain that mistake was impossible. The following sentences 
occur on page 12 : 

"All free people know, that if they would remain free, they must compel the 
government to keep its hands off their private property ; and this can be done only 
by tying them up with careful restrictions. Accordingly our Federal Constitution 
declares that ' no person shall be deprived of his property except by due process of 
law,''and that 'private property shall not be taken for public use without just 
compensation.' It is universally agreed that this applies only to the exercise of 
the power by the Government of the United States. We are also protected against 
the State governments by a similar provision in the State constitutions. Legisla- 
tive robbery is therefore a crime which cannot be committed either by Congress or 
by any Stale Legislature, unless it be done in flat rebellion to the fundamental law 
of the land." 

The close of the same paragraph shows why it was important 
that no attempt should be made to exercise such power by a Ter- 
ritory : 

" Is it not evepy way better to wait until the new inhabitants know themselves 
and one another; until the policy of the Territory is settled by some experience; 
and, above all, until the great powers of a sovereign State are regularly conferred 
upon them and properly limited, so as to prevent the gross abuses which always 
accompany unrestricted power in human hands ?" 



•18 

Mr. Douglas certainly read these passages, for he borrowed a 
phrase from them, and put it into his own speech. He ought to 
have understood them. If he both read and understood them, why 
did he allege that this pamphlet favored the dangerous heresy re- 
ferred to? Let the charity which " thinketh no evil" find the best 
excuse for him it can. 

That the government of a sovereign State, unrestricted and un- 
checked by any constitutional prohibition, would have power to 
confiscate private property, even without compensation to the owner, 
is a proposition which will scarcely be denied by any one who has 
mastered the primer of political science. Sovereignty, which is the 
supreme authority of an independent State or government, is in its 
nature irresponsible and absolute. It cannot be otherwise, since it 
has no superior by whom it can be called to account. Mere moral 
abstractions or theoretic principles of natural justice do not limit 
the legal authority of a sovereign. No government ought to violate 
justice ; but any supreme government, whose hands are entirely 
free, can violate it with impunity. For these reasons it is that the 
Saxon race have been laboring, planning, and fighting, during seven 
hundred years, for Great Charters, Bills of Rights, and Constitu- 
tions to limit the sovereignty of all the governments they have lived 
under. Our ancestors in the old country, as well as in America, 
have wasted their money and blood in vain to establish constitu- 
tional governments, if it be true that a government without a con- 
stitution is not capable of doing injustice. They knew better than 
that. They understood very well that a sovereign government, no 
matter by whom its power is wielded, may do what wrong it pleases, 
and "bid its will avouch the deed." 

Now, what is the constitutional prohibition which can anywhere 
be found to restrain "Popular Sovereignty in the Territories" (if 
there be such a thing there) from confiscating any citizen's property? 
There is none. A Territory has no constitution of its own; and 
nobody would be absurd enough to say, that it is governed by the 
constitution of another State. Will it be said, that the provision 
in the Federal Constitution, which forbids the taking o-f private 
property without compensation, can be used so as to restrain a fer- 
ritorial sovereignty? Certainly not. The Supreme Court have 
decided, (in Barron vs. The City of Baltimore, 7 Peters, 243) that 
the clause referred to applies exclusively to the exercise of the 
power by the Federal Government. The rule was so laid down by 
Chief Justice Marshall. It was concurred in by the whole Court ; 
and its correctness has never been denied or doubted by any judge, 
lawyer, or statesman from the time of the decision to this day. If, 
therefore, there be a sovereignty in the Territories, it is sovereignty 
unlimited by any constitutional interdict. This implies a power in 
the Territories infinitely greater than that of any other government 
in all North America, 

The simple and easy solution of all this difficulty is furnished by 
the Supreme Court, and adopted by the Democratic party as the 



19 

true principle governing the subject. It is this : That the Terri- 
tories are not sovereignties, but their governments are public cor- 
porations, established by Congress to manage the local affairs of 
the inhabitants, like the government of a city, established by a 
State legislature. Indeed, there is, probably, no city in the United 
States, whose powers are not larger than those of a Federal Terri- 
tory. The people of a city elect their own mayor, and, directly 
or indirectly, appoint all their municipal officers. But the Presi- 
dent appoints the Chief Executive of a Territory, as well as the 
judges. He may send them there from any part of the Union, 
and in point of fact they are generally strangers to the inhab- 
itants when first chosen. They are in no way responsible to the 
Territory or its people, but to the Federal Government alone, and 
they may be removed whenever the President thinks proper. The 
territorial legislature is sometimes (and onl}' sometimes) elected by 
the people; but why? Because Congress has been pleased to 
permit it by the organic act. The power that gives this privilege 
could withhold it too. It is always coupled with restrictions and 
regulations which could never be imposed on a sovereignty by any 
authority except its own. The organic act generally prescribes the 
qualifications of voters^ and divides the territory into districts ; and 
the action of the legislative body itself is controlled by the veto 
power of a Governor appointed by the President and removable at 
his pleasure. It is too clear for possible controversy, that a Terri- 
tory is not a sovereign power, but a subordinate dependency. It 
cannot deprive a man of his property without due process of law, 
or without just compensation, for two reasons: 1. It has no sov- 
ereign power of its own ; and, 2. The Federal Government, 'being 
forbidden by the Constitution to exercise such power itself, cannot 
bestow it on a Territory. The Constitution of the United States 
protects a man's property from being plundered by a territorial 
legislature, just as a State constitution protects it from^obbery by 
the authorities of a city corporation. 

It should be noted that when this question was before the Su- 
preme Court of the United States, there was some difierence of 
opinion among the judges, on the question whether Congress might, 
or might not, legislate for a Territory in such manner as to take 
away the right of property in slaves. A majority of two-thirds 
or more held the negative; and Mr. Douglas admits that the ma- 
jority was clearly right. But no member of the court expressed 
the opinion, nor was it even thought of by the counsel, that the 
Territories had any such inherent and natural power of their own. 
Indeed there is no judge of any grade or character, nor any writer 
on law or go^jernment, who has ever asserted or given the least 
countenance to this notion of 'popular or any other kind of sover- 
eignty in the Territories. 

Some trouble will be saved in this part of the argument, by the 
fact that since the first publication of this pamphlet, Mr. Douglas 
denies and repudiates all claim of sovereignty for the Territories. 



20 

He even says that he never did regard them as sovereigns. His 
words spoken at Wooster, Ohio, and written out by himself are 

these : 

"I NEVER claimed that territorial governments were sovereign, or that the Territories 
ivere sovereign powers." 

Of course this is not to be understood as a mere naked denial 
that he had previously used those very words. We have no right 
to charge Mr. Douglas with adopting the exploded system of mo- 
rality, which allows a man to cover up the truth under an equivoque. 
We are bound to take his denial fairly, as meaning, that he never 
thought the Territories had the rights and powers, which belong to 
sovereign governments. Let us see how this assertion will stand 
the test of investigation. 

We do not deny, that the article in Harper is extremely difficult 
to understand. Its unjointed thoughts, loose expression, and illogi- 
cal reasoning, have covered it with shadows, clouds, and darkness. 
But we will not admit that it has no meaning at all. It is scarcely 
possible to mistake the general purpose of the author. That pur- 
pose undoubtedly was to prove that the States and Territories, so 
far as concerns their internal affairs, have political rights and 
powers which are precisely equal. In fact, he declares, in so 
many words, that Pennsylvania and Kansas are subordinate to the 
Constitution "zw the sa7ne manner and to the same extent." He not 
only levels the Territories up to the States, but levels the States 
down to the Territories. If Kansas has slavery by virtue of the 
Constitution, he insists, that, by the same reasoning, Pennsylvania 
has it too. Now we know Pennsylvania to be a sovereign ; and if 
Kansas be her equal, then Kansas must necessarily be a sovereign 
also. 

But look at the last sentence, which is the grand summary of his 
whole doctrine : . 

. - . 

" The principle under our political system is that every distinct, political community, 
loyal to the Constitution and the Union, is entitled to all the rights, privileges, and 
immunities of self-government in respect to their local concerns and internal polity, 
subject only to the Constitution of the United States." 

Here the States and Territories are placed on a footing of per- 
fect equality. There is no distinction made between them. If the 
States are sovereign, so are the Territories. Besides, the "rights, 
privileges, and immunities," which he describes, as pertaining to 
every distinct political community, (that is, to both States and Ter- 
ritories,) are sovereign rights, and nothing else. Any community 
which has the independent and uncontrollable right of self-govern- 
ment, with respect to its local concerns and internal polity, must be, 
quoad hoc, a sovereign. 

Again : Mr, Douglas, in bis speech at Cincinnati, made so lately 
as the 9th September last, used the following unmistakable lan- 
guage : 

"Examine the bills and search the records, and you will find that the great jmn- 



21 

ciple which underlies those measures, (the compromise of 1850,) is the rioht of the 
people of each Stale and each Territory, while a Territory, to DECIDE the slavery 
question for themselves." 

Is not this claiming sovereignty for the Territories ? Can the 
slavery question be decided without legislating upon the right of 
property ? And can a subordinate government do that ? If the 
Territories have power to decide whether a man shall keep his 
property or not, where did the power come from ? Surely not from 
Congress, through the organic acts. They must have it, then, upon 
what Mr. Douglas calls a great principle, and that great principle 
can be nothing else than "Sovereignty in the Territories." Thus 
it is seen that Mr. Douglas makes a tour to the West, and on his 
way back he contradicts what he said as he went out. 

There are but two sides to this controversy : The Territories are 
either soveriegn powers by natural and inherent right, or else they 
are political corporations, owing all the authority they possess to the 
acts of Congress which create them. It is not possible to believe, 
that Mr. Douglas wrote thirty-eight columns in a magazine to prove 
the truth of the latter doctrine. Nobody but himself and his fol- 
lowers were ever accused of denying it. If he did not deny it, and 
plant himself upon the opposing ground of sovereignty in the Terri- 
tories, then there was no dispute, or cause of division, between him 
and the Democratic party; and he has consequently been engaged 
in raising an excitement about nothing ; — trying to toss the ocean of 
politics into a tempest, without having even a feather to waft, or a 
fly to drown. 

But that is not all. Mr. Douglas has continually used the very 
word sovereignty with reference to the Territories. This sovereignty 
in the Territories he has asserted and re-asserted so often, that the 
phrase is in great danger of becoming ridiculous by the mere fre- 
quency with Avhich he repeats it. For many months he has not 
made a speech or written a letter for the newspapers on any other 
subject. It heads his elaborate article in Harper ; it is vociferated 
into the public ear from the stump ; and it stares at us in great 
capitals from the handbills which call the people to his meetings. 
Unless it be acknowledged, he predicts the hopeless division of the 
party, and even threatens to refuse its nomination for the Presi- 
dency. Now, all at once, the subject-matter of the whole contro- 
versy is admitted to be a nonentity. He " checks his thunder in 
mid-volley," and owns that there is no sovereignty in a Territory 
any more than in a British colony. Other persons may have ridden 
their hobbies as hard as Mr. Douglas ; but since the beginning of 
the world no man ever dismounted so suddenly. 

" Sovereignty in the Territories," of which we have heard so 
much, is generally, if not always, coupled by Mr. Douglas with the 
prefix of " Popular.'' This last word appears to be used for the 
mere sake of the sound, and without any regard whatever to the 
sense. It does not mean that the people or inhabitants of the Ter- 
ritories have any supreme power independent of the laws, or above 



22 

the regularly constituted legal authorities. They cannot meet to- 
gether, count themselves, and say : " We are- so many hundreds, 
or so many thousands, and we must therefore be obeyed ; the law 
is in our voice, and not in the rules which our Government has 
made to control us." Something like this view was vaguely enter- 
tained in times when the Lecompton constitution was opposed. 
But that is gone by. Mature reflection has left mohocracy without 
a defender. Nobody now insists that the right to make or ahnul 
laws and constitutions can be exercised in voluntary mass meetings 
or at elections unauthorized by law. Mr. Douglas himself says : 
" It can, ow??/ be exercised where the inhabitants are sufficient to 
constitute a government, and capable o^ performing its vai'ious func- 
tions and duties — a fact to be ascertained and determined by (^on- 
gress." The sovereignty, then, is in the government, if it be any- 
where. But Mr. Douglas now says it is not there ; and he is right. 
That being the case, where is it ? 

When Mr. Douglas, in his speech at Wooster, was repudiating 
and denying the doctrine of sovereignty in the Territories, and re- 
suming his old position, that they are not sovereign powers, it would 
have been well to fall back upon something a little more intelligible 
than his reports to the Senate, or his anti-Lecompton letter to Phil- 
adelphia. Here is the way he describes sovereignty in his report 
of 1856 : 

" The sovereignty of a Territory I'emains in abeyance, suspended in the United 
States, in trust for the people until they shall be admitted into the Union as a 

State." 

What do these words mean, and in what possible way can they 
help us to a knowledge of the matter under consideration ? Abey- 
ance is good law French, and signifies the peculiar condition of an 
estate after one tenant has died, and before his successor is compe- 
tent to take it. But what application can it have, even by analogy, 
to a sovereignty which never existed ? It seems, too, that this sov- 
ereignty is suspended in the United States; that is, hung or de- 
pendent from something in the United States, and not independent 
like every other sovereignty under heaven. But the most marvel- 
lous part of the business is that one government which is sovereign 
is represented as a trustee of the sovereignty of another government 
which is admitted not to be sovereign. This is the talk of a man 
who has too much learning. These technical terms of the common 
law were invented by English conveyancers and real property law- 
yers, for the purpose of expressing the artificial relations which men 
sometimes bear to lands, tenements, and hereditaments ; but they 
are wholly inapplicable to such a subject as the sovereignty, of a 
State or nation. We might as well call Territorial sovereignty a 
contingent remainder, an executory devise, or a special fee tail. 

There is some confusion of ideas on another subject. Mr. Doug- 
las and his disciples ascribe to certain Democrats (to the' President 
among others) the belief that the Constitution establishes slavery in. 



2- 

the Territories; smd to sustain this accusation they quote from a 
message in which the existence of slavery in the Territories hy 
virtue of the Constitution is asserted on the authority of the Supreme 
Court. Now we are in the wrong, if the expression that a thing 
exists by virtue of the Constitution be equivalent to saying that the 
Constitution has established it. There is not only a substantial, but 
a wide and most obvious diiference. The Constitution does not es- 
tablish Christianity in the Territories ; but Christianity exists there 
bj virtue of the Constitution ; because when a Christian moves into 
aTerritory, he cannot be prevented from taking his religion along 
with him; nor can he afterwards be legally molested for making its 
principles the rule of his faith and practice. 

We have said, and we repeat, that a man does not forfeit his 
right of property in a slave by migrating with him to a Territory. 
The title which the owner acquired in the State from whence he 
came must be respected in his new domicil as it was in the old, until 
it is legally and constitutionally divested. The proposition is un- 
deniable. But the absurd inference which some persons have drawn 
from it is not true, that the master also takes with him the judicial 
remedies which were furnished him at the place where his title was 
acquired. Whether the relation of master and slave exists or not, 
is a question which must be determined according to the law of 
the State in 'wlVich it was created ; but the respective rights and ob- 
ligations of {^parties must be protected and enforced by the law 
prevailing at the place where they are supposed to be violated. 
This is also true with respect to rights of every other kind. Two 
merchants living in the same town may buy their goods in different 
States. Can it be doubted that the title of each depends on the 
law of the State where he made his purchase ? But the law of 
larceny and trespass is the law of a forum common to both, and must 
necessarily be the same. The validity of a man's marriage is tried 
by the standard of the law which prevailed in the country where it 
was solemnized ; but if he beats his wife, she must seek protection 
from the law of the place where they live. 

Some of Mr. Douglas's partizans, and nearly all of the anti- 
slavery opposition, contend that property in slaves cannot exist so 
as to entitle it to the protection of the same laws which secure the 
right of property in other things. For their benefit .we shall briefly 
show how impossible it is to admit the distinction which they insist 
upon. 

What is property? Whatever a person may legally appropriate 
to his own exclusive use and transfer to another by sale or gift. By 
the laws of the southern States, negroes are within this definition, 
and the Constitution of the United States not only recognizes the 
validity of the State laws, but it aids in carrying them out. The 
framers of the Constitution, seeing that slaves were liable to one 
danger from which all other property was exempt, namely, that of 
being seduced away by the ofi'er, in other States, of legal shelter 
from the pursuit of their owners, agreed that the Federal Govern- 



24 

rnent should guarantee their redelivery to the exclusive possession 
of the persons entitled to them as proprietors. The law, then, of 
the States in which they are and the Constitution of the Federal 
Government, to all legal intents and purposes, pronounce that slaves 
are property. Beaten here, our adversaries convert it from a legal 
to a theological question. But when they appeal from the Consti- 
tution to the Bible, they are equally dissatisfied with the decision 
they get. Nothing is left them but that "Higher Law," which \ias 
no sanction nor no authority, Divine or human. Those who reject 
the Constitution must be content to follow guides who are stone 
blind. They are men who aspire to be wise above what is written, 
and thereby press themselves down to the extremest point of human 
folly. They turn their backs on all the light, which the world has, 
or can have; they go forth into outer darkness, and wander per- 
petually in a howling wilderness of error. 

But Mr. Douglas is guiltless of this heresy at least. He concedes 
that slaves are precisely like other property, so far as regards the legal 
remedies and constitutional rights of the owner. He professes to 
take the fundamental law of the land for his guide upon that 
point. Let his practice, then, correspond with his faith ; let him 
" walk worthy of the vocation wherewith he is called ;" let him 
make no more appeals to popular prejudice for a so^^ereignty which 
does not exist ; above all things, let him never, b^he slightest 
suggestion, encourage any Territorial government to undermine the 
rights of the citizen by legislation which is " unfriendly" to the se- 
curity of either property or life. We must not palter with the Con- 
stitution in a double sense, but obey it, support it, defend it, earn- 
estly and faithfully, like men who believe in it and love it. Who- 
soever attempts to trifle with its principles, or weaken the obliga;tion 
of its guarantees, will find sooner or later that he has fixed a stain 
upon his political character which " there is not rain enough in the 
sweet heavens" to wash out. 



